KULWANT SINGH AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 729/2018

[2021] HKCFI 1260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 729 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicants:

1.  The Applicants, a married couple with their two minor children, are nationals of India who entered Hong Kong illegally on 27 December 2015 and surrendered to the Immigration Department on 30 December 2015 when they raised a non-refoulement claim on the basis that if they returned to India they would be harmed or killed by some local supporters of the political party Shiromani Akali Dal (“SAD”) who blamed them and their fellow caste members of Central Valmiki Sabha Punjab (“CVSP”) for SAD’s defeat in a local 2012 election. The Applicants were subsequently released on recognizance pending the determination of their claim.

2.  The 1^st Applicant (“A1”) was born and raised in Village Durgapur, Kapurthala, Punjab, India. After leaving school he worked in the construction sites, married his wife, the 2^nd Applicant (“A2”), and raised a family of 2 sons, the 3^rd and 4^th Applicants (“A3” & “A4”) now aged 11 and 9 respectively in their home village.

3.  In 2009 or 2010 A1 joined the local CVSP which was a religious group of different castes for various religious activities, and during the 2012 local election in his home district, A1 assisted in mobilizing the local CVSP members to support the candidate of the Bahujan Samaj Party (“BSP”) which was the main rival of SAD, and as a result the SAD candidate lost the election, which led some of the local SAD supporters to blame the CVSP members including A1 for the defeat, and on one occasion attacked them with wooden sticks and other weapons causing injuries to many CVSP members but A1 managed to escape unharmed.

4.  After the incident, A1 started to receive threatening phone calls from those SAD supporters that they would harm him and kidnap his sons if he continued to support BSP, and one evening while he was alone at home after his wife had brought their children to visit her parents, a group of SAD supporters gathered outside his house threatening to kill him, and although he managed to escape from the back of his house, he became fearful for his life and the safety of his family, and so on 5 December 2015 he departed India with his family for China, and from there they later sneaked into Hong Kong and raised their non-refoulement claim for protection, for which they completed a Non-refoulement Claim Form (“NCF”) on 18 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 22 December 2016 the Director of Immigration (“Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from those local SAD supporters upon their return to Indiaas low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that A1 had been specifically targeted for attack or of any threats ever made to his wife or children, that in any event it is doubtful that there would still be any adverse interest in them after all these years, that in the absence of any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 3 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with his family to other part of India away from his home district in large cities such as Delhi where it would be difficult if not impossible for those local SAD supporters to locate them.

7.  On 28 December 2016 the Applicants lodged their appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 10 November 2017 before the Board during which A1 gave evidence and answered questions put to him by the Adjudicator for the Board. On 16 April 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found such inconsistencies and discrepancies in A1’s evidence and that they were also vague, evasive and lacking in appropriate details and context that it did not consider him as a credible witness or that the claims of the Applicants as reliable, and that in any event in the absence of any state or official involvement and with SAD no longer the ruling party in Punjab that state/police protection would be available to the Applicants upon their return to India that it concluded that their claim for non-refoulement protection failed on all applicable grounds.

9.  On 26 April 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date he merely repeated his claim that their lives would be in danger in their home country but without putting forward any proper grounds for their intended challenge, nor did they request any oral hearing for their application. As such and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

10.  I am of course mindful of the fact that A3 and A4 are both minors and not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of the High Court, nor were they represented in their appeal before the Board, and hence it would be necessary to separately consider and examine whether their claims had also been properly considered and determined by the Board in a manner sufficient to meet high standards of fairness, and to see whether there are matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in their appeal before the Board, as the proper approach for which has recently been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

11.  While the claims of A3 and A4 were premised fundamentally on their father’s claim that they would be harmed or killed by those SAD supporters, as noted above A1 did seek to support the said risk of harm to his sons with the allegation that there had been threats to kidnap them in his evidence to the Board during his appeal hearing and recorded in paragraph 69 of the Board’s decision.

12.  However, the Board upon considering the evidence of A1 did not find him to be a credible witness and rejected the Applicants’ claim for the reasons as set out in paragraphs 84 – 100 of the Board’s decision, including specific references to the kidnapping risk in the claim of A3 and A4, and in so doing the Board had effectively and specifically considered the case made in support of the claims of the parents as well as the children individually and separately, and rejected each of them in the way they were advanced for their appeal. In this respect it is noted that on A1’s own case the threats to kidnap his sons were made only to him on the phone and never to A3 or A4 directly in India. It is therefore not a case where A3 or A4 by themselves could have given any evidence in relation to those threats, or to give instruction to their lawyer if they were legally represented in their appeal before the Board even if they were old enough to be able to do so when they were then only 9 and 6 respectively.     

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.      

14.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claim. Nor do I see any material that may give rise to any concern that there may be non-refoulement grounds that relate specifically only to the children A3 and A4 which had not been advanced to the Board or considered by it because of the lack of legal representation for them before the Board, and of which I will treat as a mere irregularity as it would not serve any useful purpose for them to be so represented given the lack of merits in their intended judicial review.   

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1